Usha Pareek , Jaipur vs Assessee

Jh vkj-ih-rksykuh] U;kf;d lnL; ,oa Jh Vh-vkj-ehuk] ys[kk lnL; ds le{k BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM

vk;dj vihy la-@ITA No. 159/JP/2012 fu/kZkj.k o"kZ@Assessment Year : 2008-09

Smt. Usha Pareek cuke The ITO Village: Mahua, Vs. Ward- 7 (2) Tehsil: Sanganer, Jaipur Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: BMYPP 6600 C vihykFkhZ@Appellant izR;FkhZ@Respondent

fu/kZkfjrh dh vksj ls@ Assessee by : Shri Manish Agarwal, CA Shri Javed Khan, Advocate

jktLo dh vksj ls@ Revenue by : Shri Kailash Mangal, JCIT -DR

lquokbZ dh rkjh[k@ Date of Hearing : 16 /06/2015 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 26 /06/2015

vkns'k@ ORDER

PER R.P. TOLANI, JM

This is an appeal filed by the assessee against the order of the ld.

ld. CIT(A)-III, Jaipur dated 02-12-2011 for the assessment year 2008-09

challenging the confirmation of addition of Rs. 42,57,700/- (correct figure

of Rs. 42,58,200/-) held as undisclosed investment for acquisition of

property.

2 ITA No. 159/JP/2012

Smt.Usha Pareek, vs ITO, Ward- 7(2), Jaipur

2.1 The assessee has filed an application for admission of additional

ground, the gist whereof is as under:-

''1. That in the case of assessee, assessment order was passed u/s 144 of the Act, 1961 without providing property opportunity of hearing to the assessee to present her case and huge addition of Rs. 42,58,200/- was made thereby.''

3.1 Ld. Counsel for the assessee in the context of admission thereof,

drew our attention to the first para of the assessment order which is

reproduced as under:-

''On the basis of information received from DIT (CIB) in respect of 50C cases notice u/s 142(1) was issued on 25- 11-2009 which was duly served. This notice remained uncomplied as neither any reply was filed nor anyone attended the hearing. Thereafter, on 15-11-2010, final show cause was issued to the assessee for 25-11-2010 fixing the date of hearing on 25-11-2010 and the same was served through the notice server on 18-11-2010. On 25-11-2010, Shri Gopal Sharma CA/A.R. of the assessee attended and submitted reply and discussed.''

3.2 It is contended that the perusal of the observations reveals that no

notice u/s 143(2) was served on the assessee and first customary notice

u/s 142(1) was issued on 25-11-09. Thereafter, next notice was issued 3 ITA No. 159/JP/2012 Smt.Usha Pareek, vs ITO, Ward- 7(2), Jaipur

after a period of one year on 15-1-2010 fixing the date of hearing on 25-

11-2010. Ld. AO has accepted that assessee's counsel Shri Gopal Sharma

attended on 25-1-2010 and furnished reply and discussions were held.

This demonstrates that there was no default on the part of assessee,

consequently framing of assessment u/s 144 is unjustified. Besides the

addition in question has been confirmed by the AO by summary

observation as under:-

''The reply submitted by the assessee's A.R. is not acceptable and the undersigned has got no other alternative except to decide the matter on merits in terms of provision of Section r.w.s. 147 of the I.T. Act, 1961. The sum of Rs. 42,58,200/- is treated as assessee's undisclosed income from undisclosed sources. The penalty proceedings u/s 271(1)( c) is initiated for concealment of income in respect of above sum.''

Thus the perusal of this para reveals that despite assessee's attendance and

explanation, the same has been rejected without assigning any reason and

assessment has been framed u/s 144 of the Act which is arbitrary and

illegal.

3.3 The additional ground regarding validity of the ex-parte

assessment being purely legal in nature, not requiring any further 4 ITA No. 159/JP/2012 Smt.Usha Pareek, vs ITO, Ward- 7(2), Jaipur

verification of the record and going to the root of the matter, may be

admitted.

3.4 The ld. DR is heard

3.5 We have heard the rival contentions and perused the materials

available on record. We find merit in the arguments of the ld. AR and it

emerges from the record that the assessee submitted her explanation

along with reply. In spite of that, the AO framed ex-parte assessment u/s

144 of the Act which in our view cannot be justified. In view of these

facts and circumstances, we are inclined to admit the additional ground

filed by the assessee.

3.6 The ld. Counsel for the assessee further contends that the

assessment in question is framed against the principles of natural justice

by way of a non-speaking order and without issuing mandatory notice u/s

143(2) of the Act. Consequently the same is void and deserves be

quashed. It is contended that the ld. AO & CIT(A) have failed to consider

the issues and summarily dismissed the explanation and ld. CIT(A) not

only dismissed the appeal but also enhanced the income by following

summary observations.

''4.1 I have carefully considered the submission of the ld. AR viz. the issue of enhancement of income, as discussed above. From the contents of same, it is felt that the 5 ITA No. 159/JP/2012 Smt.Usha Pareek, vs ITO, Ward- 7(2), Jaipur

appellant's explanation is general and superficial in nature and in absence of any supporting documents; the same cannot be accepted as such. Accordingly, it is held that the appellant has failed to substantiate the source of payment of Rs. 2,57,700/- made i.r.o. stamp duty payment. In view of the same, the income of the assessee is further enhanced by Rs. 2,57,700/- as undisclosed investment / expenditure towards the impugned land deal, under consideration.''

Alternatively, it is contended that the assessment made by the AO may be

restored back to the AO to decide the same afresh in accordance with law.

3.7 The ld. DR supported the order of the ld. CIT(A).

3.8 We have heard the rival contentions and perused the materials

available on record. We find merit in the argument of ld. Counsel for the

assessee that assessee having filed the explanation and written submission

which is accepted by AO, the framing of assessment u/s 144 is

unjustified. Besides ld. AO without adverting to the merits of the reply

rejected it a summary manner and non speaking manner. In view of the

foregoing, we are inclined to set aside the matter back to the file of the

AO to decide the same afresh in accordance with law, after giving

adequate opportunity of being heard to the assessee. Hence, the appeal of

the assessee is allowed for statistical purposes. 6 ITA No. 159/JP/2012

Smt.Usha Pareek, vs ITO, Ward- 7(2), Jaipur

4.0 In the result, the appeal of the assessee is allowed for statistical

purposes

Order pronounced in the open court on 26/06/2015.

Sd/- Sd/- ¼Vh-vkj-ehuk½ ¼vkj-ih-rksykuh½ (T.R. Meena) (R.P.Tolani) ys[kk lnL;@ Accountant Member U;kf;d lnL;@Judicial Member

Tk;iqj@Jaipur fnukad@Dated:- 26 /06/ 2015

*Mishra

vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:

1. vihykFkhZ@The Appellant- Smt. Usha Pareek, Jaipur

2. izR;FkhZ@ The Respondent- The ITO, Ward- 7 (2), Jaipur

3. vk;dj vk;qDr¼vihy½@ CIT(A).

4. vk;dj vk;qDr@ CIT

5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur

6. xkMZ QkbZy@ Guard File (ITA No.159/JP/2012)

vkns'kkuqlkj@ By order,

lgk;d iathdkj@ Assistant. Registrar 7 ITA No. 159/JP/2012 Smt.Usha Pareek, vs ITO, Ward- 7(2), Jaipur